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The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Thursday, 31 December 2015

The EU trade mark
reform package (for press release see hereand for the legislative texts see here, for
the Directive, and here, for
the EU TM Regulation) was probably the main course in this year’s IP Christmas
table (though Santa’s General Counsel resignation might have just made all other topics of discussion
vanish).

No worries! I'll be back in EU soil in a flash

The new set-up of
rules may, amongst other positive effects, help to end EU’s days as, in Nokia’s
words, “a logistical hub” for counterfeiters. The IPKat has posted on the
issue, including, notably, here and here. The,
rather over-technical and certainly awkward situation, of the “immunity” of
counterfeit goods transiting through the EU, only to return to it, has always
been hard for this blogger to understand. Moreover, as anti-counterfeiting
practicioners around Europe have come to know too well, the transit immunity became
useful, if not central, to counterfeiting strategies to bring illicit goods in
to the EU.As the EU seems to be
hopefully closing this chapter, this blogger can “brag” as Greece had
introduced a relevant provision in its TM law system as from 2012, exactly in
recognition of the problem.

But how about controlling
supply chains of genuine products? Nowadays, across industries, consumers’
needs go beyond the ability to verify product authenticity; consumers demand to
know where the product was manufactured and whether it’s safe to use. Be it for
reasons of reducing carbon footprint, quality, or purely health-related. A
noteworthy example is heightened scrutiny over India-manufactured drugs in the recent
media reports, e.g., here.

Trade mark owners
are also naturally interested to see their products sold by legitimate supply
chain operators, in the markets they were originally destined for. One self
-evident reason is the nightmare of potential regulatory non-compliance of
products sold in a market other than the one they were destined for (different
requirements for voltage in the case of electronic products, veterinary
clearance of meat products, or health warnings in the case of cigarettes). Another
aspect – clearly visible in the case of luxury goods – concerns limitations on
sale per person to (a) maintain the products’ exclusivity (and desirability),
and (b) ensure that distribution of profits among their regional operations is
in line with local demand (and prices). The technical means are available to deploy
effective supply chain controls, although a vigorous sales data record keeping has also gone a long way for luxury brands and, on top, can be linked with giving clients the desired sense of exclusivity and personalization of service. In this respect, supply chain control is not a regulatory initiative linked with public goals, but rather a private, self-regulatory, measure aiming primarily at brand protection.

At the forefront of
the regulatory controls is the pharma industry with the recently notified draft
Commission Delegated Regulation (see here) to the
Falsified Medicines Directive (2011/62/EU).
Tobacco industry is not far behind with
the revised Tobacco Products Directive (2014/40/EU).
Not least, explosives for civil use, while not as widely used as medicines or
cigarettes [or so this blogger thinks], are also being tracked and traced. A task
force was created under the auspices of the European Commission to ensure that
what the Directive (2008/43/EC)
prescribes is feasible and implemented (see here). Wondering
whether this will come to mind while gazing New Year celebrations’ fireworks in
the Athenian sky tonight! Probably not, but the sight is always nice.

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